Gerry W. v. O'Malley

Background

Gerry W. applied for Title II disability insurance benefits, alleging disability beginning March 1, 2020, because of prostate cancer, a knee problem, and a back problem. The Social Security Administration denied the application initially and on reconsideration. After a hearing, Administrative Law Judge Sarah R. Smisek found that Gerry W. was not disabled. The Appeals Council denied further review, making the administrative law judge’s decision the Commissioner’s final decision.

The administrative law judge found severe impairments involving prostate cancer after radiation treatment, degenerative joint disease of the knees, and an umbilical hernia. She determined that Gerry W. could perform medium work with restrictions, including limits on lifting, climbing, postural activities, wetness, vibration, and workplace hazards. Based on testimony from a vocational expert, she found that he could perform jobs including sealing machine operator and hand packager.

Arguments and Record

Gerry W. challenged the residual functional capacity, or RFC—the most he could still do in a work setting. He argued that the administrative law judge improperly discounted his urinary urgency and frequency by relying on his failure to continue taking Flomax and by finding that his urinary symptoms existed before his alleged disability date. He also argued that the administrative law judge failed to consider his reports that Flomax caused sleepiness.

The record described urinary symptoms after radiation treatment, including urgency, frequency, dysuria, and incomplete bladder emptying. In October 2021, Gerry W. reported urinating approximately every 60 to 90 minutes. At the hearing, he testified that he needed to use the bathroom about every hour to hour and a half. The vocational expert testified that a person needing a break every hour and a half throughout an eight-hour workday could not perform the jobs identified by the administrative law judge.

Court’s Analysis

The court held that the record did not support the administrative law judge’s assertion that Gerry W.’s urinary urgency began before he stopped working or before March 1, 2020. The court noted records from late 2019, January 2020, and March 2020 reporting no urinary urgency or satisfaction with urination. The court also noted that urinary problems began appearing after radiation treatment. Although one later record stated that some urgency and frequency predated radiation therapy, the court found no evidence establishing that Gerry W. experienced those problems while working or before the alleged onset date.

The court also found that the administrative law judge did not comply with Social Security Ruling 16-3p when considering Gerry W.’s failure to continue taking Flomax. That ruling requires consideration of possible reasons a claimant did not follow treatment. Gerry W. had twice reported to the Social Security Administration that Flomax caused sleepiness, but the administrative law judge did not address that explanation.

The court rejected the Commissioner’s argument that bathroom breaks would likely be shorter than ordinary work breaks. The administrative law judge had not relied on that reasoning, and a court may not uphold an agency decision based on a post-decision rationale supplied by counsel. The court also found that the cited rule concerning customary breaks for sedentary work did not govern the medium work assigned in Gerry W.’s RFC. The court stated that, on remand, the administrative law judge could ask a vocational expert whether an employer would tolerate bathroom breaks at the frequency supported by the record.

The court did not decide when Gerry W.’s urinary urgency became severe enough to require additional work restrictions, or whether he was ultimately disabled. It remanded for the administrative law judge to make those determinations and to reconsider the RFC and related vocational evidence.

Disposition

The court ordered that Gerry W.’s motion for summary judgment be granted in part, that the Commissioner’s opposition be denied, and that the case be remanded to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with the order. The opinion’s introductory section refers to the plaintiff’s motion as Docket 16, while the final order identifies it as Docket 17.